The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Friday, 11 August 2017

EU (Withdrawal) Bill ~ Retention of Existing EU law

This post continues my look at the European Union (Withdrawal) Bill as introduced into Parliament on 13th July 2017. Previous posts are HERE and HERE. Very little of this complex and cumbersome Bill is easy reading. Nevertheless, it is of crucial importance for the state of our law in the future.

Since
accession to the EU in 1973, an enormous amount of law has flowed into the UK
via the European Communities Act 1972 (the ECA) - referred to in the Miller
judgment (para 65) as a 'conduit pipe.' The general scheme of the EuropeanUnion (Withdrawal) Bill is to retain, with important exceptions, EU law as it exists
immediately before exit day and then to give (extensive) powers to Ministers to
alter things. Clauses 2 to 6 are concerned with Retention of
Existing EU law. The Explanatory
Notes offer assistance with their interpretation.EU Legislation:The key
source of EU law is the Treaties by which Member States have conferred various competencies upon the
EU including the ability to make law in order to implement those
competencies - EU
Treaties Consolidated Version. The EU adopts regulations, directives,
decisions, recommendations and opinions. Regulations have general application and are binding in their entirety and they are directly applicable in all member States. This
form of EU law has force in the UK because of section 2(1) of
the European Communities Act 1972 -(the ECA). "Directly
applicable" means that the EU enactment leaves no discretion to the
Member States but, rather, confers rights and duties within the Member States
without further legislative participation. In practice, the UK has often
made domestic legislation regarding implementation within the UK of EU
Regulations.One example
of EU Regulation is Regulation
261/2004 - Common rules on compensation and assistance to passengers in the
event of denied boarding and of cancellation or long delay of flights.
Those EU Regulations required Member States to lay down rules regarding
sanctions for infringement and the UK did this by enacting the Civil Aviation
(Denied Boarding, Compensation and Assistance Regulations 2005.Directives are binding, as to the result to be achieved, upon each member
state to which they are addressed, but leave to the national authorities the
choice of form or methods. One of the main ways by which directives have
been implemented in the UK is by use of the power in section 2(2)
of the ECA but it is not the only method that has been used. For example,
domestic health and safety law is often made to implement EU obligations but is
normally made under the powers in the Health and Safety at Work
etc. Act 1974rather than the
ECA. An example of
use of the power under ECA section 2(2) is The Waste
Electrical Electronic and Equipment Regulations 2013 which implement
Directive 2012/19/EU. Direct Effect: EU law
provisions can sometimes have Direct Effect
meaning that the provision automatically confers legal rights on individuals
which are enforceable against the Member State government and certain other
bodies. Whether a Treaty Article or other EU law provision has direct
effect depends on whether it is "sufficiently precise, clear and
unconditional."Clause 2:Clause
2 of the Withdrawal Bill deals with the retention of "EU-derived
domestic legislation." The definition of this term is complex. Here is the Clause as at the time of
writing (11th August 2017):

2. EU-derived domestic
legislation

(1) EU-derived domestic legislation, as it has effect in domestic
law immediately before exit day, continues to have effect in domestic law on
and after exit day.

(2) In this section “EU-derived domestic legislation” means any
enactment so far as -

(b) passed or made, or operating, for a purpose mentioned in
section 2(2)(a) or (b) of that Act,

(c) relating to anything -

(i) which falls within paragraph (a) or (b), or

(ii) to which section 3(1) or 4(1) applies, or

(d) relating otherwise to the EU or the EEA,

but does not include any enactment contained in the European
Communities Act 1972.

(3) This section is subject to section
5 and Schedule
1 (exceptions to savings and incorporation).

Generally,
secondary legislation lapses automatically when the primary legislation under
which it is made ceases to have effect, unless saved expressly. For
instance, domestic legislation made under the ECA section 2(2) to implement
(say) a directive would lapse if the ECA were to be simply repealed.
Clause 2 will ensure that such legislation continues to have legal effect but
under the terms imposed by the Withdrawal Act.
Clause 2 receives a fuller explanation in the Explanatory Notes - HERE.
Clause 3:Clause
3 deals with the retention of "Direct EU legislation."
Again, the definition is complex but it will ensure that most EU Regulations
continue to be applicable to the UK but under the terms imposed by the
Withdrawal Act.Clause 3
receives a fuller explanation in the Explanatory Notes - HEREHere is the
Clause as at the time of writing (11th August 2017):

3 Incorporation of direct EU
legislation

(1) Direct EU legislation, so far as operative immediately before
exit day, forms
part of domestic law on and after exit day.

(2) In this Act “direct EU legislation” means -

(a) any EU regulation, EU decision or EU tertiary legislation, as
it has effect in EU law immediately before exit day and so far as -

(ii) its effect is not reproduced in an enactment to which section
2(1) applies, or

(c) Protocol 1 to the EEA agreement (which contains horizontal
adaptations that apply in relation to EU instruments referred to in the Annexes
to that agreement), as it has effect in EU law immediately before exit day.

(3) For the purposes of this Act, any direct EU legislation is
operative immediately
before exit day if -

(a) in the case of anything which comes into force at a particular
time and is stated to apply from a later time, it is in force and applies
immediately before exit day,

(b) in the case of a decision which specifies to whom it is
addressed, it has been notified to that person before exit day, and

(c) in any other case, it is in force immediately before exit day.

(4) This section -

(a) brings into domestic law any direct EU legislation only in the
form of the English language version of that legislation, and

(b) does not apply to any such legislation for which there is no
such version,

but paragraph (a) does not affect the use of the other language
versions of that legislation for the purposes of interpreting it.

(5) This section is subject to section
5 and Schedule
1(exceptions to savings and
incorporation).

Clause 4:Clause
4 ensures that any remaining EU rights and obligations which do not fall
within clauses 2 and 3 continue to be recognised and available in domestic law
after exit. This includes, for example, directly effective rights contained
within EU treaties. Directly effective
rights are those provisions of EU treaties which are sufficiently clear,
precise and unconditional to confer rights directly on individuals which can be
relied on in national law without the need for implementing measures.
Where directly effective rights are converted under this clause, it is the
right which is converted, not the text of the article itself.

Clause 4 is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).The
Explanatory Notes (HERE)
provide a list of Treaty Articles considered by the Government to contain
directly effective rights which would be converted into domestic law as a
result of this clause. The list is said to be an illustrative list and is
not intended to be exhaustive. Clause 5:Deals with
two matters:A]
Clause
5 addresses the principle of supremacy of EU law which means that domestic
law must give way if it is inconsistent with EU law. In the UK this can mean
that a court must disapply an Act of Parliament, or a rule of the common law,
or strike down UK secondary legislation even if the domestic law was made after
the relevant EU law. This
principle will no longer apply to legislation passed
or made on or after exit day (an Act is passed when it receives
Royal Assent). It is interesting to find here, in a Bill designed to extract the UK from the EU, an acknowledgment by Parliament that EU law was actually supreme. Although the principle existed at the time of accession to the Treaties, it took a long time for the English legal system to accept it and perhaps only eventually did so with the Factortame litigation.If a conflict
arises between pre-exit domestic legislation and
retained EU law, the supremacy of EU law will, where relevant,
continue to apply as it did before exit. B]
A further matter dealt with by Clause 5 is the EU
Charter on Fundamental Rights. Clause 5(4) states - "The Charter
of Fundamental Rights is not part of domestic law on or after exit
day." Whilst this is no doubt included for political reasons it raises an interesting question given that one objective of the Bill is to keep legal continuity. At present, the Charter is relevant when applying EU law but its removal will place the courts in the position of having to decide how its removal affects the meaning of retained EU law.

Clause 5(5)
makes clear that, whilst the Charter will not form part of domestic law after
exit, this does not remove any underlying fundamental rights or principles
which exist irrespective of the Charter, and EU law which is converted will
continue to be interpreted in light of those underlying rights and principles.

Clause 5(6) states that - "Schedule 1 (which makes further provision about exceptions to savings and incorporation) has effect." Schedule 1 contains some important provisions and is the subject of a further post - HERE.Clause 5
receives a fuller explanation in the Explanatory Notes - HERE

Clause 6:Clause
6 deals with Interpretation of Retained EU law. This Clause will
merit a separate post. It is addressed in the Explanatory Notes - HERE.